JONATHAN TURLEY: Birthright citizenship ruling leaves conservatives with only one path

Today, Folarin Balogun secured a spot on the American soccer team for the World Cup...for a second time.

That may be the most positive spin I can offer to those upset by today's 5-4 decision in favor of birthright citizenship. Balogun, one of the stars on our team, was born to Nigerian parents visiting the United States and then raised in England.

According to the Supreme Court, he is — and was always intended to be — a citizen under the Fourteenth Amendment.

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It is a conclusion that divided the court 5-4, but, as in soccer, a one-point win is as good as a nine-point win.

Roberts wrote for the majority that "The Framers of the Fourteenth Amendment extended that promise to 'every free-born person in this land.' We keep that promise today."

The victory for birthright citizenship was due to the joining of Chief Justice John Roberts (who authored the decision) and Justice Amy Coney Barrett with the three liberal justices. They found the language and history of the amendment to be clear and, relying on prior rulings dating back decades, concluded that birth alone in this country is enough to confer citizenship — even if born to a tourist or someone briefly on our soil.

It is a view that is rejected by the vast majority of countries, which rightfully view birthright citizenship as bonkers, including some which followed the practice and then rescinded it. The United States remains one of the outliers in maintaining this ill-considered practice.

Justice Clarence Thomas wrote a dissent, joined by Justice Neil Gorsuch, effectively arguing that this is the invention of the Court, which refused to reconsider its lazy prior analysis. That included the Court's 1898 ruling in United States v. Wong Kim Ark, which expanded birthright citizenship beyond what the Reconstruction Congress had ever "contemplated." He noted that the Court could have resolved the case on narrower grounds consistent with the 14th Amendment: "Wong Kim Ark addressed only the citizenship of a child born to parents who were lawfully and permanently domiciled in the United States."

The 5-4 decision unleashed another furious broadside on social media against Barrett, particularly after she authored the 5-4 decision on mail-in ballots again, this time with Roberts and her liberal colleagues.

Barrett hit a nerve as one of the three Trump appointees, whom many hoped would be more in the vein of Alito or Thomas. Instead, she often writes with Roberts.

The attacks on Barrett ignored that there are good-faith arguments on both sides of the birthright citizenship case. They also ignore that she regularly voted with the conservatives and for positions of the administration. For example, she voted to support states in requiring transgender athletes to compete with their biological sex. She previously was the most vocal justice in rejecting transgender status as a protected class akin to race or religion.

President Trump has lashed out at his nominees over their adverse rulings. However, they remain one of his most impressive and positive legacies. President Trump said that he wanted independent and principled conservatives. He got them in Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They are all extraordinary jurists who have dramatically elevated the Court's intellectual discussions.

When I testified at Gorsuch's confirmation in the Senate, I told the senators that they were wrong to pigeonhole the nominee: he would go wherever his convictions took him. That has proven to be the case, and it is a great credit to Trump that he selected such independent minds.

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On birthright citizenship, the matter now rests not with the court, but the country. We have never truly had a national debate over the practice. The basis and future of birthright citizenship have remained matters almost exclusively for the courts.

We must now decide whether to pursue such a debate as a constitutional amendment.

While Congress can pass legislation cracking down on birth tourism, there is only so much that such laws can do in questioning why particular births occurred in the United States, such as the birth of Balogun.

I can think of no more appropriate debate to have as we celebrate our 250th anniversary than what it means to be a citizen of this unique republic.

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